[2004] KEHC 1283 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT NO 70 OF 2004

TIMWOOD PRODUCTS LIMITED ..……..………PLAINTIFF

VERSUS

JASWINDER SINGH ENTERPRISES LTD……..DEFENDANT

RULING

The Plaintiff has come by way of Notice of Motion under Order XXXV Rule 1 and 8 of the Civil Procedure Rules and Section 3 A of the Civil Procedure Act.

The Plaintiff seeks the order: -

“ That this Honourable court be pleased to enter summary judgment for the Plaintiff against the defendant in the sum of kshs 3, 840, 494. 50 together with interest at 3% per month until payment in full.

The application is premised on the following grounds: -

(a) That the Plaintiff’s claim against the defendant is for liquidated demand with interest;

(b) That the Defendant is truly and justly indebted to the Plaintiff as claimed in the plaint;

(c) That defence as filed is a sham that raises no triable issues and is merely calculated to delay the Plaintiff’s claim.

The affidavit in support of that application reveals that that debt claimed by the Plaintiff arises from business transactions with the defendant. The deponent of the affidavit stated that on diverse dates between January 1996 and February 1998 the defendant requested the plaintiff to supply it with various goods on credit. The Plaintiff supplied those goods and invoiced the defendant for the same. The deponent stated that the invoices indicated that interest of 3% per month was applicable for over due accounts. The defendant, it was deponed, despite being supplied with goods did not pay the account with the plaintiff and the amount the defendant owed as at 31st May 1998 was kshs 3, 840, 494, 50. Annexed to the affidavit in support of the application was a cheque issued by the defendant for kshs 500, 000 which was dishonoured on presentation for payment.

The defendant by its replying affidavit admitted that the plaintiff indeed supplied the goods as ordered by the defendant but denied owing the amount claimed in the case and further stated that it had made payment of kshs 1. 8 million which amount had not been credited to its account by the plaintiff. The defendant finally claimed that it is entitled to set off the amount owned to the Plaintiff by the amount owed to it by Defendant of kshs 814, 016. 00.

The Plaintiff by its supplementary affidavit stated that the amount of kshs 1. 8 million was credited, and in this affidavit annexed yet another statement of account unlike the one annexed to the application and this time reflected the amount of kshs 1. 8 million.

I am guided by the Court of Appeal case DHANJAL INVESTMENTS LTD – V – SHABAHA INVESTMENT LTD (1997) LLR 618where it was stated: -

“The Law on summary judgment procedure has been settled for many years now. It was held as early as in 1952 in the case of KANDNLAL RESTAURANT – V – DEVSHI & COMPANY (1952) EACA 77 and followed by the Court of Appeal for Eastern Africa in the case of SONAZA FIGUERIDO & COMPANY LTD – V – MOORING HOTEL LTD (1952) E A 425 that, if the defendant shows a bona fide triable issue he must be allowed to defend without condition.”

Having regard to the jurisprudence of the quoted cases, I am of the view that the Plaintiff’s case is not merited. Looking at the annexed invoices I find that they state, “interest at current borrowing rate.” One will therefore see that the interest was not fixed, as submitted by counsel at 3% per month but as stated above. The plaintiff did not adduce evidence to prove what was or is the current borrowing rate.

Secondly in scrutinizing the statement of accounts annexed to the application I find that the plaintiff has debited an amount of kshs 1, 148, 432. 75 which amount is not supported by an invoice, indeed a hand written note states “interest”. That would mean that the Plaintiff has included interest in the statement and has not given sufficient evidence of how it arrived at that rate.

Thirdly the plaintiff in the affidavit in support of the application only reflected one credit entry in the defendant’s account but on being confronted by the defendant’s affidavit, which showed payment of kshs 1. 8 million prepared another statement this time showing the credits of that amount. It is not clear to me why after that credit the amount owing in that account did not change.

I am, as a result of my findings herein above, of the view that this case is not a plain and obvious case on which summary judgment could be entered, the issues raised by the defendant can only, to my mind be resolved at the trial.

The end result is that he Plaintiff’s application dated 21st August 2004 is dismissed. Since the defendant did not attend the hearing of the Plaintiff’s application, despite a date being taken by consent, there shall be no orders as to costs.

Dated and delivered this 17th day of November 2004.

MARY KASANGO

AG JUDGE